Shiv Dayal Shrivastava, J.
1. The appellant was tried under Section 307 of the Indian Penal Code by the learned Sessions Judge Guna. He has been convicted under Section 387 of the Code and sentenced to one year's rigorous imprisonment.
2. The case for the prosecution was that in a case under the Arms Act against the accused,Pancham Singh (P.W. 1) was a witness for the prosecution. In that case the accused was convicted. When he came back from the prison he went to Pancham Singh, who was working in his field and demanded Rs. 500/- from him. Pancham Singh expressed his inability to pay him that amount. Whereupon, the accused who was carrying a loaded gun in his hand fired at Pancham Singh, who cleverly enough lay flat at the right time and thus saved himself from the shot. Lallu Ram (P.W. 2) and Moti Lal (P.W. 3) came there.
The accused tried to run, but was overtaken. He tried to reload the gun, but the same was not only snatched from him, but he was also given a beating with its butt end. The accused fell down and Moolchand (P.W. 4) and Soma (P.W. 5) also reached there. It was on these facts that the appellant was accused of having committed the offence of attempt to commit murder.
3. The learned Sessions Judge has disbelieved that part of the prosecution story in which it was said that the appellant fired a gun at Pancham Singh. He has, therefore, acquitted the accused of the offence under Section 307 Penal Code. But then he came to the conclusion that the accused committed the offence under Section 387 I. P. C, and convicted him of that offence.
4. Shri B.L. Bhargava first invites my attention to the charge. His point is that there being no charge under Section 387, nor there were material facts stated in the charge which constituted that offence, there could be no conviction. In my opinion, the contention is sound. The charge was really framed by the Magistrate First Class, Pachar, who committed the accused to trial. And the same charge was read out to the accused by the learned Sessions Judge. The charge, when rendered into English reads thus :
'On 26-11-1957 at or about 5 in the evening you, Hira, fired a gun with such intention and with such knowledge and in such circumstances that if by that act Pancham Singh had died you would have been guilty of murder and thus you committed an offence under Section 307 Indian Penal Code, which is triable by the court of sessions.'
It is obvious enough that the charge is defective. There is no whisper in this charge why the accused fired a gun, that he demanded Rs. 500/- from Pancham Singh or that a threat was held out to him. Merely quoting or translating the wording of a section in a charge -- 'with such intention and such knowledge and in such circumstances' is not enough. The accused should have been told the accusation against him precisely.
Apart from anything else, there are no facts in this charge to give the slightest indication to the accused that he was being charged with the offence of extortion. Likewise, in his examination under Section 342 Cr. P. C. the learned Sessions Judge put to him questions number 2 and 3 in these words :
iz'u%&bUgh; xokgksus dgk gS fd rqeusiapeflag ls 'OO ekaxs vkSj tc mlus bUdkj fd;k rks rqeus mldh iapeflagdh rjQ mldks ekjus dh uh;r ls ;g canwd NksMh pykbZ blds fy;s D;k dguk gS
iz'u%& iapeflag dgrk gS fd tSlh gh rqeuscanwd mldh rjQ djds ycych nckuk pkgh oSls gh og ,dne tehu ij ysV x;k vkSj canwddk Qk;j mls ugha yx ik;kA vxj og ,slk u djrk rks QSj mldks yxrkA bl ckjs esa D;kdgrs gks
In Thakur Singh v. Emperor, AIR 1939 All 665, the charge was under Section 302 for murder, but the conviction was under Section 385 I. P. C. and it was held that the conviction was bad in law.
5. As a general rule an accused person cannot be convicted of an offence with which he isnot charged subject to the exceptions contained in Sections 237 and 238 of the Code of Criminal Procedure. In the case in hand the appellant was notrepresented by a legal practitioner in the trial court.I have, therefore, reached the conclusion that theaccused was really prejudiced by the error in thecharge.
6. The second contention of Shri Bhargava is that the main prosecution witnesses Pancham Singh (P.W. 1), Lallu Ram (P.W. 2) and Motilal (P.W. 3) have been disbelieved in material parts by the learned Sessions Judge. The Sessions Judge has observed,
'I am not prepared to believe that part of the statement of these witnesses which relates to the firing of the gun ........ (reasons given) .........Moreover the gun was not examined for the purpose to know whether it had been recently fired which should have been done by the prosecution. It was necessary because the possibility cannot be ruled out that Pancham Singh may have cooked up the story of the gun firing to save his own skin for injuries which were found on the body of the accused and there should have been some reasonable cause or another justifying the infliction o these injuries.'
Truly speaking the main feature of the trial and the real accusation against the appellant was that he fired the gun. If that part was disbelieved, the whole prosecution case became shattered.
7. The learned Sessions Judge has further disbelieved that the coat, muffler etc. which were taken by Pancham Singh to the police station belonged to the accused.
8. As to the allegation that the appellant demanded Rs. 500/- from Pancham Singh the witnesses who were produced by the prosecution are the same, namely, Pancham Singh, Lallu Ram and Motilal. In the peculiar circumstances of the case, it must be held that no reliance can be placed on their statements as to this part of the prosecution case also.
9. Shri Bhargava further attacks the prosecution witnesses on the ground that they were interested and were on inimical terms with the accused. It is also urged that the story relating to the payment of Rs. 500/- was most unnatural because if it was out of spite that the accused wanted to teach a lesson to Pancham Singh he would have caused hurt, of any description to him rather than demanded Rs. 500/-. I do not think it necessary to go into those arguments.
Shri Bhargava relies on the decision of their Lordships of the Supreme Court in the case of Sarwan Singh for the proposition that a conviction cannot be sustained even if the court is satisfied that the prosecution story 'may be' true unless and until it is found that the prosecution story 'must be true' (Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637).
10. Since I have found that Pancham Singh, Lallu Ram and Motilal are witnesses of no credence, the conviction of the appellant must be set aside.
11. This appeal is, therefore, allowed, the conviction and sentence are set aside and the appellant is acquitted. He shall be set at liberty forthwith.
12. I am glad to note that Shri B.L. Bhargavaoffered himself to assist this Court by appearinggratis for the accused. I am thankful to him forthe valuable assistance he rendered after thoroughlypreparing the case.